Rogers v. Towing, Civil Action No. 09-4259.

• Court: United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
• Citation: 723 F.Supp.2d 929
• Docket Number: Civil Action No. 09-4259.
• Parties: Tommy ROGERS v. COASTAL TOWING, L.L.C.
• Decision Date: 03 June 2010

723 F.Supp.2d 929

Tommy ROGERS
v.
COASTAL TOWING, L.L.C.

Civil Action No. 09-4259.

United States District Court,E.D. Louisiana.

June 3, 2010.

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COPYRIGHT MATERIAL OMITTED.

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Joseph J. Weigand, Jr., Attorney at Law, Houma, LA, for Tommy Rogers.

Jefferson Randolph Tillery, Catherine Barrett Rice, Jones Walker, New Orleans, LA, for Coastal Towing, L.L.C.

ORDER AND OPINION STANWOOD R. DUVAL, JR., District Judge.

Before the Court is the “Motion for Summary Judgment” filed on behalf of defendant Coastal Towing, L.L.C. Having reviewed the pleadings, memoranda, and relevant law, the Court, for the reasons assigned, DENIES the motion.

BACKGROUND

At approximately midnight on December 31, 2007, Captain Joseph Dardar of the M/V KAY ANN-a vessel owned by defendant Coastal Towing, L.L.C. (“Coastal”)-suffered a heart attack. The Lafourche Parish Ambulance Service District No. 1 was summoned to respond to that medical emergency. Plaintiff Tommy Rogers (“Rogers”) was one of two paramedics assigned to respond. At Rogers's request a crew member aboard the vessel provided a gangplank from the dock to the vessel to facilitate boarding. The deck of the vessel was approximately three to four feet below the end of the gangplank, requiring Rogers to jump from the gangplank onto the deck. In doing so, he allegedly sustained various injuries. As a result of his injures, Rogers claims that he has experienced pain and suffering, disability, loss of income, loss of enjoyment of life, and medical expenses. In July 2009, Rogers filed a complaint seeking damages for his injuries. Subsequently, Coastal filed for summary judgment, urging that (i) Louisiana's Professional Rescuer's Doctrine, which bars professional rescuers from recovering for injuries sustained in the course of their work, extends to emergency medical personnel and (ii) the Louisiana Professional Rescuer's Doctrine may be applied to supplement the general maritime law.

LAW AND ANALYSIS I. Subject Matter Jurisdiction

The complaint states that this Court has jurisdiction “based upon the Admiralty Law of the United States of America and the General Maritime Law.” ¹ Coastal has not disputed the exercise of admiralty jurisdiction by this Court. However, that Coastal has not contested such jurisdiction is not dispositive of the issue. A federal court must determine for itself whether subject matter jurisdiction exists over the case before it. ² Having examined the pleadings, the Court has determined that both a maritime locus ³ and nexus ⁴ exist as to Roger's claim, and as

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such, the exercise of admiralty jurisdiction is appropriate in this case.

II. Law Applicable

“With admiralty jurisdiction comes the application of substantive admiralty law.” East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 2298-99, 90 L.Ed.2d 865, 1986 A.M.C. 2027 (1986). The question presented by Coastal's motion is whether the general maritime law preempts Louisiana's Professional Rescuer's Doctrine.

A. Federal Preemption of State Law

Under the Preemption Clause of the Constitution, federal law preempts conflicting State law. U.S. Const., art. VI, cl. 2. The judge-made general maritime law is a facet of federal law and therefore preempts conflicting State law. Thomas J. Schoenbaum, Admiralty and Maritime Law § 4-3 (4th ed. 2004) (citing Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337, 1955 A.M.C. 467 (1955)). However, the Supreme Court has approved the application of State law where it serves to supplement, but not contravene, the general maritime law by filling a “gap” therein. See e.g., Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578, 1996 A.M.C. 305 (1996). There are limits to such supplementation: A State law may not supplement the general maritime law where the State law (i) conflicts with an applicable act of Congress, (ii) works material prejudice to a characteristic feature of the general maritime law, or (iii) interferes with the proper harmony and uniformity of the general maritime law in its international and interstate relations. Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529, 61 L.Ed. 1086, 1996 A.M.C.2076 (1917). To determine whether one of the foregoing limitations is applicable in this case, it is necessary to examine the relevant aspects of the general maritime law and the Professional Rescuer's Doctrine.

B. The General Maritime Law

The general maritime law imposes upon vessel owners “the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550, 1959 A.M.C. 597 (1959). Where the breach of that duty is urged by a plaintiff, it will not lie for the defendant to counter that the plaintiff assumed the risk of his injuries, for, in admiralty, assumption of risk is not a defense. National Marine Serv. Inc. v. Petroleum Serv. Corp., 736 F.2d 272, 1987 AMC 840 (5th Cir.1984). See also Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265, 1939 A.M.C. 1 (1939); Edward Leasing Corp. v. Uhlig & Associates, Inc., 785 F.2d 877, 1987 AMC 2268 (11th Cir.1986); Doucet v. Diamond M Drilling Co., 683 F.2d 886, 1983 AMC 2999 (5th Cir.1982). Rather, if what the common law would characterize

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as “assumption of risk” amounts to fault or negligence on the part of the plaintiff, the comparative fault rule, as incorporated into the general maritime law by the Supreme Court in United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251, 1975 A.M.C. 541 (1975), applies. ⁵ Parties to a claim in admiralty are liable to pay damages in proportion to the amount of their respective fault; thus, fault on the part of a maritime plaintiff will not bar his recovery unless he is entirely at fault. Id. at 411, 95 S.Ct. at 1715-16.

C. The Professional Rescuer's Doctrine

Under Louisiana law, “[t]he Professional Rescuer's Doctrine is a jurisprudential rule that essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, ‘assumes the risk’ of such an injury and is not entitled to damages.” Gann v. Matthews, 03-640, pp. 5-6 (La.App. 1 Cir. 2/23/04); 873 So.2d 701, 705. However, Louisiana courts have recognized that professional rescuers do not assume the risk of all injury without recourse. ⁶

For the adoption of the Professional Rescuer's Doctrine, Louisiana courts have advanced a dual justification. First, the doctrine is justified by the assumption of risk on the part of professional rescuers. See Meunier v. Pizzo, 97-0047 (La.App. 4 Cir. 6/18/97); 696 So.2d 610, 613. That is, those persons engaged in the profession of rescuing others (e.g., firemen and police officers) knowingly assume the risks of their profession, and such professional rescuers are compensated in a manner commensurate with the risks they knowingly undertake. Second, the doctrine is justified by a public policy of encouraging those in need of rescue to call for it, rather than to abstain from doing so out of fear of liability for injuries sustained by a professional rescuer. Id. at 614-15. Notwithstanding such justifications, while Louisiana and numerous other jurisdictions have espoused, in one form or another, a Professional Rescuer's Doctrine, there are a number of other jurisdictions which do not espouse...